Kamta Yadav And 2 vs State Of U.P.
2022 Latest Caselaw 10206 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1660 of 2003
 

 
Appellant :- Kamta Yadav And 2
 
Respondent :- State of U.P.
 
Counsel for Appellant :- M.Naseerullah
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. By means of the instant appeal, the appellants have assailed the judgment and order dated 24.09.2003 passed by the learned Additional Sessions Judge, Court No.5 Barabanki in Sessions Trial No.252 of 1996 arising out of Case Crime No.75 of 1995, under Sections 323, 504, 506, 308 of the Indian Penal Code (hereinafter referred to as "I.P.C."), Police Station Asandra, District Barabanki, whereby the appellants have been convicted and sentenced for one year's imprisonment each for the offene under Section 506 I.P.C. They have also been convicted and sentenced for three years' rigorous imprisonment each for the offene under Section 308/34 I.P.C. All the sentences are directed to run concurrently.

2. The prosecution case, in brief, is that a written report was submitted by the first informant, Ram Shankar to the Police Station Asandra, District Barabanki, stating therein that on 06.07.1995 he was raising his thatch. He was obstructed by the appellants who assaulted him by lathi. Smt. Parvati, due to injuries inflicted by the appellants became unconscious. The first informant and his son were also assaulted by the appellants. The incident was witnessed by Ram Bahadur and Ram Bux etc. who intervened and subsided the matter.

3. On the basis of aforesaid written report Ext. Ka-1, first information report, Ext. Ka-6 came to be lodged as Case Crime No.75 of 1995, under Sections 323, 504, 506, 308 I.P.C., Police Station Asandra, District Barabanki.

4. Investigating Officer, undertook the investigation. He recorded the statements of witnesses under Section 161 Cr.P.C. He also visited the place of occurrence and prepared site plan thereof as Ex. Ka-7 and upon conclusion of investigation, he submitted the charge sheet as Ex. Ka-8 and 9 against the appellants.

5. The accused/appellants were charged under Sections 323, 504, 506, 308 I.P.C. to which they pleaded not guilty and claimed to be tried.

6. In order to bring home guilt of appellants, the prosecution has examined eight prosecution witnesses, PW-1, Ramshankar, PW-2, Shiv Bux, PW-3, Parvati, PW-4, Ram Kishor, PW-5, Rambux, PW-6, Dr. Rohit Kumar, PW-7, Constable Hari Prasad and PW-8, Constable Keshav Singh.

7. Dr. Rohit Kumar was examined as PW-6, who have prepared the injury report of injured Ram Shankar, Shiv Bux Ramkishor and Smt. Parvati as Ext. Ka-2 to 5, respectively, which reveals that aforesaid injured persons have sustained multiple injuries which were contusion, laceration etc.

8. The statements of appellants were recorded under Section 313 Cr.P.C. In their detailed statements, the appellants have denied the allegations levelled against them. They have stated to have been falsely implicated. The prosecution witnesses have deposed against them due to enmity.

9. No evidence in defence was adduced by the appellants before the trial Court.

10. By means of impugned judgment and order dated 24.09.2003 the appellants came to be convicted as aforesaid. Hence this appeal.

11. No one has appeared in this appeals to argue the same for appellants. However, having regard to the fact that this appeal was filed in the year 2003 and is very old, the same is proposed to be disposed of on the basis of available record and with the assistance of learned A.G.A. for the State, Sri Alok Saran.

12. The main grounds which have been taken to assail the impugned judgment dated 24.09.2003 are that there is no evidence on record to warrant conviction of the appellants under Section 308/34 & 506 I.P.C. which is against the weight of evidence and therefore, cannot be sustained. It is also stated that during trial the first informant and appellants volunteerly entered into a compromise. This fact finds mentioned in the impugned judgment. The charges under Sections 323 and 504 I.P.C. were compounded by learned trial Court and thus, proceeded under Sections 308/34 and 506 I.P.C. only.

13. Having regard to the statement of first informant, who has supported the prosecution story in its entirety and keeping in view the testimonies of injured witnesses, Ram Shankar, Shiv Bux Ramkishor and Smt. Parvati it transpires that the finding of conviction of appellants under Sections 308/34 and 506 I.P.C. based on proper appreciation of prosecution evidence. Therefore, the finding of guilt of the accused-appellants as aforesaid does not suffer from infirmity and the same is thus, affirmed.

14. This Court cannot lose the sight of the fact that the alleged incident took place on 06.07.1995, which came to be decided by the impugned judgment and order dated 24.09.2003, after about eight years and since then the instant appeal also kept pending. The accused-appellants have, thus, undergone a traumatic phase of about 27 years due to the pendency of trial and the instant appeal. The injured and the appellants belong from the same village and now they are aged also. They have undergone a long traumatic phase of about 27 years since the date of incident. There is nothing on record to show that the surviving appellants are either having any criminal antecedents or they are prior convict. The parties had voluntarily entered into a compromise and on the basis thereof, offence under Sections 323 and 504 I.P.C. was compounded by the learned trial Court. This fact finds mentioned in the impugned judgment itself.

15. Accordingly, having regard to the fact that the parties have already settled their dispute amicably and learned trial Court was handicapped by the fact that offence under Section 308 was not compoundable, therefore, the accused-appellants were convicted by means of impugned judgment as aforesaid.

16. Thus, having regard to the aforesaid overall facts and circumstances of the case, the accused-appellants have been convicted and sentenced for one year's imprisonment each for the offene under Section 506 I.P.C. They have also been convicted and sentenced for three years' rigorous imprisonment each for the offene under Section 308/34 I.P.C., in want of any aggravating circumstances brought to the notice of this Court, it appears to be a fit case where the accused-appellants ought to have been extended benefit of provisions of Probation of Offenders Act, 1958.

17. It is useful to quote Sections 4 of Probation of Offenders Act, 1958:-

"4. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1) is made, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1), the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order or impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

18. It is also relevant to quote Section 11 of Probation of Offenders Act, 1958, which reads as under:-

"11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision.--

"(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.

(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.

(3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.

(4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty."

19. This Court in the case of Subhash Chand & others Vs. State of U.P. (2015 Law Suit (All) 1343) , has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts:-

30. "It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellante courts. The Registrar General of this Court is directed to circulate copy of this Judgement to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgement. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance."

20. The Hon'ble Apex Court in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659 has extended the benefit of Probation of Offenders Act, 1958 to the appellants, and observed as under:-

"The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour."

21. Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622, the Hon'ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months.

22. In the light of the above discussions, this Court finds no illegality in the impugned judgment. Thus, the conviction of the accused-appellants under Sections 308/34 & 506 I.P.C. is upheld. However, sentence, as indicated above, is liable to be modified.

23. The upshot of aforesaid discussion is that the conviction of the the accused-appellants under Sections 308/34 & 506 I.P.C. is upheld, however, the sentence is modified to the extent that instead of sentencing the appellants, to the jail, he shall get the benefit of Section 4 of the Probation of Offenders Act. Further, the appellants shall file two sureties to the satisfaction of the court concerned coupled with personal bonds to the effect that he shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of two years. The bonds aforesaid be filed by the appellants within eight weeks.

24. In case of breach of any of the above conditions, the appellants shall be taken into custody and shall have to undergo sentence awarded to him.

25. With the above modification, the instant criminal appeal is partly allowed.

26. In compliance of the provision contained in Section 437-A Cr.P.C. the accused-appellants are directed to furnish personal bond and two sureties each to the satisfaction of the court concerned within a period of six weeks from today.

27. A copy of this order be communicated to the trial Court concerned for necessary information and compliance through e-mail/fax.

Order Date :- 16.08.2022

A.Dewal

[Ajai Kumar Srivastava-I, J]